Citation Nr: 9829032
Decision Date: 09/28/98 Archive Date: 10/01/98
DOCKET NO. 94-36 939 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for a back disorder.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. Johnson, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1960 to
November 1963.
A March 1989 rating decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Pittsburgh,
Pennsylvania, denied service connection for compression
fracture of L-4 with degenerative arthritis. A November 1992
RO rating decision denied secondary service connection for
curvature of the spine. The RO notified the veteran in
January 1993 that service connection was denied for a back
condition, and the veteran did not submit a timely appeal.
In March 1993 the veteran submitted an application to reopen
the claim for service connection for a back disorder. This
appeal arises from a September 1993 RO rating decision that
denied the requested benefit. The veteran has appealed to
the Board of Veterans' Appeals (Board) for favorable
resolution of the issue listed on the first page of this
decision.
In May 1996, the Board remanded this case in view of the
veteran’s request for a personal hearing before a member of
the Board at the RO. As requested, the RO took the
appropriate steps to schedule a hearing before a member of
the Board. However, the veteran indicated in a July 1997
letter that he would rather appear before a hearing officer
at the RO. The hearing was conducted in March 1998.
Therefore, it is reasonable to conclude that the RO complied
with the action requested in the May 1996 remand. See
Stegall v. West, 11 Vet. App. 268 (1998).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his back disorder is secondary to
his service-connected shoulder disability. He argues that
the cast placed on his shoulder following an automobile
accident during service caused the curvature of the spine.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has
been submitted to warrant reopening the claim of service
connection for a back disorder.
FINDINGS OF FACT
1. In an unappealed November 1992 decision, the RO refused
to reopen the claim of entitlement to service connection for
a back disorder on the basis that new and material evidence
had not been submitted.
2. Some of the recently presented evidence reviewed and
submitted since the RO refused to reopen the claim in
November 1992 bears directly and substantially upon the
specific matter under consideration, is neither cumulative
nor redundant, and by itself or in connection with evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the claim.
CONCLUSION OF LAW
Evidence submitted since the RO’s November 1992 refusal to
reopen the claim is new and material, and the claim is
reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R.
§ 3.156(a) (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A diagnosis of a back disorder does not appear in the
veteran’s service medical records. The service medical
records do show that in December 1961, the veteran was
involved in an automobile accident and sustained a fracture
of the right humerus and laceration to the right eye. The
spine was found to be normal at the time of the November 1963
separation examination. On VA examination of February 1989,
the examiner found some slight muscle spasm and no actual
loss of motion. The dorsal-lumbar spine moved as a unit.
The examiner diagnosed possible lumbar strain. X-rays
revealed degenerative arthritis and old asymmetric
compression fracture of L4 with disc narrowing and mild
scoliosis from L3 to S1.
In March 1989, the RO denied the claim of service connection
for a back disorder on the basis that the medical evidence
did not show that the condition was incurred or aggravated
during service, or the proximate result of his service-
connected disabilities. In August 1992, VA received the
veteran’s application to reopen his claim. Evidence had not
been added to the record at that time. The RO refused to
reopen the claim in November 1992. The RO referred to the
lack of medical evidence indicating that the veteran suffers
from curvature of the spine and the fact that the claim had
been previously denied. Appellate action was not initiated,
and the decision became final.
Decisions of the RO are final under 38 U.S.C.A. § 7105 (West
1991); however, the VA must reopen the claim and review the
former disposition of the case where new and material
evidence is submitted with regard to that previously
disallowed claim. 38 U.S.C.A. § 5108 (West 1991).
New and material evidence means evidence not previously
submitted to agency decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (1998).
The United States Court of Veteran’s Appeals (Court) has
established a two-step analysis that must be applied in cases
in which a claimant seeks to reopen a claim that has become
final. First, there must be a determination as to whether
there is new and material evidence to reopen the claim. If
there is such evidence, the claim must be reviewed on the
basis of all the evidence, both old and new. A decision
regarding either is appealable. Manio v. Derwinski, 1 Vet.
App. 171 (1991). If the evidence is found to be new and
material under these guidelines, the claim is reopened, and
then the Board must evaluate the merits of the veteran’s
claims in light of all the evidence.
Finally, the Court has also stated that in determining
whether evidence is new and material, the credibility of the
new evidence is, preliminarily, to be presumed. If the claim
is reopened, the ultimate credibility or weight to be
accorded such evidence must be determined as a question of
fact. Justus v. Principi, 3 Vet. App. 510 (1992).
In a case unrelated to the present appeal, the Court has
stated that in determining whether new and material evidence
has been submitted, it is necessary to consider all evidence
added to the record since the last time the claim was denied
on any basis. Evans v. Brown, 9 Vet. App. 273 (1996).
Therefore, the question now before the Board is whether new
and material evidence has been added to the record subsequent
to the RO’s refusal to reopen the claim in November 1992. In
this case, evidence submitted since the refusal to reopen the
claim consists of: additional information regarding the 1961
automobile accident; a December 1992 VA examination report;
VA treatment records dated from 1992 to 1994; MRI reports
from August 1993 and April 1994; the veteran’s March 1998
personal hearing testimony and a written statement from his
wife; and a March 1998 letter from the veteran’s
chiropractor, Curtis C. Bannister. The record also includes
a June 1998 letter from United Health Services Hospitals,
informing VA that a request for records could not be honored
since the dates for the records requested were past the
hospital file retention date.
Additional information regarding the 1961 automobile accident
includes: a July 1991 report from the State of New York
Department of Motor Vehicles regarding the restoration of the
veteran’s non-resident driving privileges, including a
reference to a 1961 accident; an April 1998 response from the
Vestal State Police informing VA that they did not have a
record of the accident described, and directing VA to other
agencies that may be of assistance; and copies of a newspaper
article regarding the automobile accident. When the claim
was initially denied, the evidence of record clearly
established the veteran’s involvement in an automobile
accident, therefore the further evidence of his involvement
is not new and material as it is cumulative and redundant of
evidence previously reviewed and considered.
VA treatment records reflect treatment for chronic disc
syndrome and the prescription of medication for a period from
1992 to 1994. On VA examination of December 1992, the
examiner reported a diagnosis of chronic cervical and lumbar
strains with questionable secondary lumbar radiculitis. A
June 1993 VA radiology report impression was that of old
fracture at L4 and normal pelvis.
The medical evidence also includes VA radiology reports from
August 1993 and April 1994. The CT and MRI reports from
August 1993 reflect a reported history of 2½ years of back
pain, and the motor vehicle accident years beforehand. The
CT of the lumbar spine revealed old fracture and scoliosis,
some relative stenosis, as well as degenerative disc disease
at L4-5 and L5-S1 levels. The MRI revealed the following:
extensive degenerative changes of the endplates of L5 and S1
with disc bulge and spinal stenosis and some thickening of
the ligamentum flavum with suggestion for small disc
herniation especially to the left side; disc herniation,
degenerative disc disease associated with mild degree of
spinal stenosis L4-5; mild degree of disc bulge L3-4; mild
degree of disc bulge L2-3 as well and there is suggestion for
small disc herniation associated with this finding; and
Schmorl’s node and degenerative disc disease S1-2.
According to the April 1994 VA hospital report, the veteran
had a 22 year history of low back pain since the time of an
injury in the early 1970s and re-injury in 1976 and 1985,
with increasing back pain and radiation to the thigh with
numbness of both feet for the past three years. The history
of the motor vehicle accident in 1961 was also noted in the
radiology interpretation report.
With regard to the low back, the April 1994 MRI revealed
degenerative changes throughout the lumbar spine with canal
stenosis at both L3-4 and L4-5. The examiner diagnosed
lumbar stenosis.
The veteran testified before a hearing officer at the RO in
March 1998. The veteran described the automobile accident he
was involved in during service, and the injuries sustained in
that accident. He was initially treated at a civilian
hospital, and at some point he was placed in a “spiker”
cast and a body cast from the hips up. Prior to being placed
in a spiker cast, he complained of sharp pains on the right
side over the chest. He indicated that the weight of the
cast made his back worse. According to his testimony, he was
placed in the spiker cast because it was thought that he
fractured his ribs. He noted that his arm was stationary
from the waist up and that the elbow was flexed. The veteran
demonstrated the casting position during the hearing by
holding his right arm flexed at the elbow at approximately
120 degrees and up against the right anterior chest. Since
he considered a medical discharge to be the equivalent of a
dishonorable discharge, he never complained about his back.
After his separation from service, he started seeking
treatment for his back after an incident of back pain in
1976. He saw Dr. Ekenba, who has since retired. He did not
seek treatment up until that time because he learned to
tolerate the backaches. He discussed the impact of his back
problem on his personal and professional life.
In support of his claim, the veteran’s wife submitted a
written statement dated in March 1998, in which she discussed
his physical limitations due to his back problems.
In a March 1998 letter Curtis C. Bannister, a chiropractor,
noted that the veteran sought treatment from him in January
1993 for back pain. The veteran reported a history of the
automobile accident in service. After reviewing the
veteran’s past history, the chiropractor was of the opinion
that the clinical and symptomatic picture is a result of the
1961 accident. The veteran was found to have disc
degeneration with loss of range of motion. MRI reports were
enclosed. The Board finds that this letter is new and
material evidence. Clearly it is new, and it is significant
in connection with evidence previously submitted. The
evidence of record prior and subsequent to the RO’s refusal
to reopen the claim demonstrates that the veteran suffers
from a low back disorder, and this letter offers a medical
opinion regarding the cause of the low back disorder.
Therefore, the claim is reopened.
ORDER
New and material evidence having been submitted to reopen the
claim of entitlement to service connection for a low back
disorder, the application to reopen the claim is granted.
REMAND
As discussed above, the Board has determined that there is
new and material evidence to warrant reopening the veteran’s
claim of entitlement to service connection for a low back
disorder. However, before proceeding to a consideration of
the merits of this claim, the Board must first decide whether
the veteran will be prejudiced in any way by its
consideration of the reopened claim when the RO has not
addressed the underlying issue. The factors to be considered
are whether the claimant has been given adequate notice of
the need to submit evidence or argument on the underlying
claim, an opportunity to submit such evidence or argument,
and an opportunity to address the issue at a hearing.
Bernard v. Brown, 4 Vet. App. 384 (1993). In the case at
hand, the Board concludes that the veteran will be prejudiced
by its consideration of the underlying claim. Therefore, the
veteran and his representative should have the opportunity to
present written argument and evidence on the underlying
claim.
As noted above, in Manio, the Court established a two-step
analysis that must be followed in cases which the claimant
seeks to reopen a claim that has become final. The first
step, which has been decided in the above decision, is to
determine whether there is new and material evidence
sufficient to reopen the claim. The second step, for which
this case is now remanded, is to review the claim in light of
all of the evidence, both old and new, and to determine
whether this evidence warrants a revision of the former
decision.
A conclusion that there is new and material evidence to
reopen the claim carries with it a finding that the claim is
well grounded. Crowe v. Brown 7 Vet. App. 238 (1994).
Therefore, there is a duty to assist the claimant. 38
U.S.C.A. § 5107 (West 1991) and 38 C.F.R. § 3.103(a) (1998).
From a careful review of the evidence in this case, the Board
has determined that there is additional development that must
be completed by the RO in order to fulfill this statutory
duty prior to appellate review of the veteran’s claim. Under
appropriate circumstances, the duty to assist includes
conducting a thorough and contemporaneous medical
examination. Proscelle v. Derwinski, 2 Vet. App. 629, 632
(1992); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).
Currently, the evidence of record shows that the veteran
suffers from a low back disorder, and that he was involved in
an automobile accident during service. The veteran has
argued that the type of cast placed on his shoulder following
the accident caused the curvature of his spine. Service
connection is in effect for a right shoulder disability. In
this case, the only evidence in support of the veteran’s
assertion comes from the letter submitted by his
chiropractor.
Judicial interpretation of the matter of secondary service
connection, embodied in 38 C.F.R. § 3.310 (1998), requires
consideration of whether or not a service- connected
disability either causes or aggravates another condition.
Allen v. Brown, 7 Vet. App. 439 (1995). These considerations
require development of the medical record, inasmuch as the
Board is prohibited from substituting its own unsubstantiated
medical opinions. See Colvin v. Derwinski, Vet. App. 171,
175 (1991). Since the medical opinions of record are not
clear regarding the possible cause of the veteran’s low back
disorder, the Board finds that an examination is in order
given the nature of his claim.
In addition to the matters discussed above, the Board points
out that the claims folder includes a photocopy of one side
of a two-sided December 1992 VA x-ray report. Also, in that
report, there is a reference to an August 1990 x-ray report
that is not associated with the claims folder. Therefore,
the RO should locate those records and associate them with
the claims folder.
In view of the foregoing, and in order to fully and fairly
evaluate the veteran’s claim, the case is REMANDED to the RO
for the following development:
1. The RO should obtain current medical
records related to the treatment of the
veteran’s low back disorders. The RO
should also secure a copy of the August
1990 x-ray report referred to in the
December 1992 VA x-ray report, as well as
a complete copy of the December 1992 VA
x-ray report. After securing the
necessary releases for private records,
all such records should be obtained and
associated with the claims folder.
2. The RO should then schedule the
veteran for an orthopedic examination to
determine the nature and etiology of all
lumbar spine disorders that are currently
present. The examiner should indicate
the date of onset of all lumbar spine
disorders found. The examiner is
requested to review the record and to
state whether it is at least as likely as
not that any current lumbar spine
disabilities are the result of, or were
increased by, the service-connected right
shoulder disability, or the automobile
accident in service. If it is not
medically feasible to make such
determinations, the examiner should
clearly state that on the written report.
All special studies and tests, which, in
the opinion of the examiner, are
reasonably necessary to complete the
examination and prepare the medical
opinions, should be accomplished. The
claims folder and a copy of this remand
must be made available to the examiner
for use in studying the case. The
examiner is requested to indicate the
clinical basis for his or her opinion.
3. The RO should adjudicate the
veteran’s claim of entitlement to
service connection for a low back
disorder, including whether this claimed
disability increased in severity as a
result of his service-connected right
shoulder disability, pursuant to Allen
v. Brown, 7 Vet. App. 439 (1995).
4. If the determination remains adverse
to the veteran, he should be provided a
supplemental statement of the case which
includes a summary of additional
evidence submitted, any additional
applicable laws and regulations,
including those covering presumptive
disorders, and the reasons for the
decision. The veteran should be
afforded the applicable time to respond.
Thereafter, subject to current appellate procedures, the
case should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
action until he is further informed. The purpose of this
REMAND is to obtain additional information and to afford the
veteran due process of law. The Board intimates no opinion,
either factual or legal, as to the ultimate conclusion
warranted in this case.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
J. E. Day
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or
benefits, sought on appeal is appealable to the United
States Court of Veterans Appeals within 120 days from the
date of mailing of notice of the decision, provided that a
Notice of Disagreement concerning an issue which was before
the Board was filed with the agency of original jurisdiction
on or after November 18, 1988. Veterans’ Judicial Review
Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122
(1988). The date that appears on the face of this decision
constitutes the date of mailing and the copy of this
decision that you have received is your notice of the action
taken on your appeal by the Board of Veterans’ Appeals.
Appellate rights do not attach to those issues addressed in
the remand portion of the Board’s decision, because a remand
is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1997).
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